Mr. Emmanuel Mba V. Spring Bank Plc & Ors (2016)

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TIJJANI ABUBAKAR, J.C.A. 

This appeal is against the judgment of the High Court of Lagos State delivered on the 1st day of November 2007/11/2007 in suit No. LD/M/609/06 by Olateru-Olagbegi J.

The suit at the Court below was commenced against the 2nd and 3rd Respondents by the 1st Respondent vide an Originating Summons dated 20th December 2006. The 2nd and 3rd Respondents filed a Notice of Preliminary Objection dated the 27th day of February 2007 seeking for an order striking out the suit or alternatively directing that the claimant file proper pleadings. When the matter came up for hearing on the 1st day of November 2007 the Claimant (1st Respondent) moved the Court to enter judgment in their favor pursuant to Order 25 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004 in the absence of the Defendants (2nd and 3rd Respondents). The Court struck out the Preliminary Objection of the 2nd and 3rd Respondents, and granted the reliefs sought by the Claimant (1st Respondent) in its Originating Summons. The Application by the 2nd and 3rd Respondents to set aside the judgment obtained in their absence was dismissed

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by the learned trial Judge in his ruling dated the 15th day of September 2009. The 2nd and 3rd Respondents became aggrieved by the decision of the lower Court and therefore lodged appeal against the said ruling to this Court in Appeal No. CA/L/838/2009.

The Appellant herein Mr. Emmanuel Mba who was not a party to the suit at the lower Court is purportedly the Owner of the property, which is the subject matter of the suit to which the lower Court in its judgment ordered the Claimant (1st Respondent) to sell. The Appellant’s application dated the 19th day of September 2011 for leave to apply as a party interested pursuant to Section 243(a) of the 1999 Constitution was granted in the ruling delivered by this Court on the 18th day of May 2012.

The Appellants Amended Notice of Appeal was filed on the 16th day of April 2014. The amended Notice of appeal contains four grounds of appeal. The Appellants’ Amended brief of argument was also filed on the 16th day of April 2014. The Amended Appellants’ Reply Brief was filed on the 8th day of March 2016. Learned Senior Counsel G. N. Uwechue SAN, filed the briefs on behalf of the Appellant.

?The 1st, 4th and 5th

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Respondents’ Brief of Argument was filed on the 23rd day of February 2016 by Learned Senior Counsel Sylva Ogwemoh SAN, while the 2nd & 3rd Respondents’ Brief of Argument was filed on the 19th day of January 2016 by Learned Counsel B. C. Igwilo.

The Appellant distilled three issues for determination; the issues are reproduced as follows:
1. Whether the learned trial judge was right in assuming jurisdiction over, rather than striking out the originating summons, which was fundamentally and incurably incompetent and irregular, having not sought any declaratory relief to provide an answer to the question sought to be determined as required by the rules of Court (Distilled from grounds 2 & 4).
2. Whether the lower Court was right in assuming the jurisdiction to consider and grant the reliefs sought in the originating summons in this case without first considering and determining the question sought to be determined by the originating summons. (Distilled from ground 1).
3. Whether upon the evidence and the law the lower Court was right in granting the third relief sought in the originating summons which states as follows:
“3. In default of payment as aforesaid,

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the claimant shall be at liberty to sell the 2nd defendant’s landed property at Plot 74 Block 4, Lekki Peninsula Residential Scheme 7, Lekki, Lagos measuring in Area 1,533.055 square meters and registered as Number 95, at page 95 in Volume 1986G of Lagos State of Nigeria Land Registry Office, Ikeja, Lagos as per the agreement between the parties, (Exhibits SB5, SB (-S812).” (Distilled from ground three).

The 2nd & 3rd Respondents adopted the issues submitted for determination by the Appellant, while the 1st, 4th and 5th Respondents submitted two issues for determination thus:
1. Whether the Originating Summons of the 1st Respondent at the High Court of Lagos State brought pursuant to Order 51 of the High Court of Lagos State (Civil Procedure) Rules, 2004 was defective, thereby robbing the High Court of Lagos State of the requisite jurisdiction to entertain it and grant the reliefs contained in the said Originating Summons. (Distilled from ground 1 & 2).
2. The second issue an adoption of the 3rd issue of the Appellant, which has been reproduced above.